Article excerpt

An investigation of Supreme Court confirmation hearings reveals many queries posed to nominees reference specific court cases, especialiy recent decisions, and with questioning often divided along partisan lines. These findings indicate that the hearings are more substantive than is commonly assumed.

As part of the checks and balances that are a hallmark of the American political system, presidential nominees to the U.S. Supreme Court must be confirmed by the Senate. To facilitate its role of providing the president with advice and consent, in 1816 the Senate created the Committee on the Judiciary. In 1939, Felix Frankfurter became the first Supreme Court nominee to take unrestricted questions from members of the Judiciary Committee in a public hearing. While nominees appointed immediately after Frankfurter testified before the Committee only sporadically, in 1955 nominee testimony became the norm. Since the appointment of John Harlan, all appointees whose nominations were officially submitted to the Senate have appeared before the Judiciary Committee.'

While Senate Judiciary Committee hearings have the potential to provide both a check on the president's appointment authority and a means to hold potential justices democratically accountable, the hearings are routinely criticized as being devoid of any real substantive content.2 Despite the fact that this sentiment has seemed to reach the status of conventional wisdom, there has been very little systematic research on the content of the hearings themselves.3 Consequently, with few exceptions, our understanding of the substance of the hearings is primarily based on anecdotal accounts of hearing testimony, rather than the rigorous analysis of what actually transpires at the hearings.

To remedy this state of affairs, we investigate one particularly important aspect of the hearings: the extent to which hearing dialogue is motivated by the discussion of judicial decisions. In so doing, we address a series of interrelated questions: How much hearing testimony is devoted to the treatment of judicial decisions? Do senators or nominees address judicial decisions more frequently? Which court's decisions are most commonly debated? How old are the court cases scrutinized at the hearings? Which issue areas provoke discussion of precedent? Do these issue areas vary depending on the political party of the senator interrogating the nominee?

Understanding the discussion of judicial decisions at Supreme Court confirmation hearings is important for several reasons. First, at the most basic level, this analysis provides insight into whether any generalized claims can be made about the confirmation process.4 By demonstrating that a substantial portion of hearing dialogue involves the concrete discussion of judicial decisions, this research contributes to the view that the confirmation process is a core part of our governing system. As such, this work speaks directly to the question of whether the hearings have substantive content independent of opportunities for senators to score political points by probing the idiosyncrasies of individual nominees, such as asking abstract and relatively meaningless questions about their preferred methods of constitutional interpretation. Second, because respect for precedent is a cornerstone of the American common law system, investigating the treatment of judicial decisions at the confirmation hearings provides a window into how constitutional change is driven by a common-law methodology, illustrating the importance nominees and senators attach to the acceptance (or rejection) of existing case law. Because nominees are rarely willing to violate the norm of not forecasting their positions on legal disputes they might encounter, should they be confirmed to the Court,5 taking the confirmation process seriously requires examining what nominees are willing to say about previously decided constitutional cases. By interrogating nominees on past decisions, senators are provided insight into the nominees' positions on prominent legal issues without pressing them to divulge how they might rule on future disputes. …

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